First Lawsuit Filed in Georgia Claiming New BMD Machines Violate State Constitutional Right to a Secret Ballot


Election integrity activists are raising concerns about Georgia’s new voting machines, saying the large, bright, vertical touchscreens allow other people in the room to see a voter’s selections in violation of ballot secrecy provisions in state law.

In a petition filed Monday in Sumter County Superior Court against the five members of the county election board, the activists ask the court to order the board to have voters use hand-marked paper ballots rather than the touchscreen voting machines. They’ve asked for an emergency hearing.

The need for such an order is urgent, the petition says, because Sumter County is part of a state Senate district in which the runoff for a special election is set for March 3 and early voting in that contest began Monday. A clear violation of voters’ constitutional right to a secret ballot could create “a substantial risk that the results of this special election will be declared null and void,” the petition says.


“Justices Ask Government to Weigh in on Koch-Linked Donor Case”

Bloomberg Law:

The U.S. Supreme Court has asked for the government’s view about if the court should hear a case about whether to nix a California law requiring disclosure of some charitable donors.

The Koch brothers-backed group Americans for Prosperity Foundation brought a challenge to a requirement that charities disclose their largest donors to state officials.

The foundation, linked to industrialists Charles Koch and his late brother, David, and joined by its unusually large number of supporters in the case, say the law impinges on the right to freely associate with groups or organizations. They say it could expose donors to harassment if their names became public.

The state counters that the information is already disclosed to federal officials and is legally required to be kept confidential by the state.


“If Democrats fight right-wing ‘fake news’ fire with fire, we all lose”

I have written this piece for Salon. It begins:

Democrats are increasingly worried about losing the 2020 presidential election to Donald Trump. The party is in seeming disarray from the botched Iowa caucuses and the failure of an “electable” frontrunner to emerge early in the primary season. Trump’s fundraising and digital operations are humming, buoyed in part by his acquittal at the Senate trial which refused to remove him from office for soliciting foreign interference in the 2020 elections and obstructing the House’s investigation of it.  

As reported recently in The Atlantic by McKay Coppins, many Democrats believe Trump’s success stems in part from an extended campaign of disinformation across social media, aided by malign foreign actors, and that it is time to fight fire with fire. But these nascent Democratic efforts at media manipulation and misinformation will only make things worse and can undermine an intelligent democracy in the long run. They are also likely to be ineffective and even counter-productive. 


“Dueling Narratives Emerge From Muddied Account of Russia’s 2020 Interference”


At the root of the confusion is what Shelby Pierson, a senior intelligence official responsible for overseeing the issues of election interference, said in that briefing.

Ms. Pierson, a longtime intelligence official, said there was no doubt the Russians were continuing to insert themselves in the election process. That would be consistent with past intelligence reports, and the effort by the United States Cyber Command in 2018 to block Russian intelligence from manipulating social media before the midterm congressional elections.

But some intelligence officials said Ms. Pierson did not say that the current interference was explicitly on Mr. Trump’s behalf. Others in the briefing said that in response to lawmakers’ follow-up questions, officials made the connection between the Russian preference for Mr. Trump and Moscow’s efforts to interfere in the election.

The difference between actively backing Mr. Trump and preferring his re-election is a subtle nuance, officials say, but an important one: It is probably too early for the Russians to begin any significant move to bolster a specific candidate. In 2016, they at first sought to cause chaos and hurt Hillary Clinton, intelligence reports released later that year said, but only in the last few months before the election did they actively work to elect Mr. Trump.


“The Cybersecurity 202: Americans should not be confident about security of 2020 election, experts say”


Americans should not be confident about the security of the 2020 election, according to a slim majority of experts surveyed by The Cybersecurity 202.

The assessment from 57 percent of The Network, a panel of more than 100 cybersecurity experts who participate in our ongoing informal survey, puts a serious damper on the years-long push by federal, state and local government officials and political parties to bolster election security since a Russian hacking and influence operation upended the 2016 contest. 

“There are no signs that any part of our institutions are capable of providing an election that is reasonably secure from tampering and manipulation,” said Dave Aitel, a former NSA computer scientist who is now CEO of the cybersecurity company Immunity. 

“Every part of the voting process is vulnerable. This includes the voter registration process, the voting itself, the vote tabulation, and the results-reporting system,” said Bruce Schneier, fellow and lecturer at the Harvard Kennedy School of Government. 


“Election Meltdown, Part 5; Doomsday scenarios and hopeful actions in the final part of our voting-rights series.”

You can listen to the final episode of the Election Meltdown podcast (in conjunction with Dahlia Lithwick and Slate Amicus) at this link. From the Episode Notes:

In the fifth and final part of this special series of Amicus, Dahlia Lithwick is joined live on stage in Washington by former Florida gubernatorial candidate Andrew Gillum, MacArthur fellow Professor Danielle Citron of Boston University law school, director of the ACLU’s voting-rights initiative Dale Ho, and election law professor Rick Hasen of the University of California, Irvine. Together, they pick themselves up from the rug of despair with a pile of can-do fixes for the stress points threatening the integrity of U.S. elections.

Rick Hasen’s new book Election Meltdown forms the basis for this special series of Amicus.

Podcast production by Sara Burningham

I want to offer my deep appreciation to producer Sara Burningham and co-host Dahlia Lithwick for a series that has far exceeded my expectations when I first thought turning my book into a podcast series. Dahlia’s wit and wisdom made the topic as entertaining as it was terrifying and Sara is a brilliant producer who could take a string of random thoughts and make them into a coherent and beautifully produced story. Thanks as well to Gabriel Roth of Slate podcasts for supporting the project. And thanks to all those who gave interviews and participated in the Slate Live! event.

Here is the full list of Election Meltdown episodes (although there will be two more bonus episodes coming for Slate Plus members):

Episode 1, The voter fraud that wasn’t, the voter suppression that is. 
Episode 2, Paper jams, lost forms, and lost boxes—incompetence and elections
Episode 3, Delving into the big bag of dirty tricks ahead of the 2020 election
Episode 4, Rhetoric and reality: When is it OK to say an election was ‘stolen’?
Episode 5, Doomsday scenarios and hopeful actions in the final part of our voting-rights series.

Bonus Episode 1 (Slate Plus) (Interview with Matt Dunlap)
Bonus Episode 2 (Slate Plus) (Interview with Jocelyn Benson)
Bonus Episode 3 (Slate Plus) (Interview with Brendan Nyhan)
Bonus Episode 4 (Slate Plus) (Interview with Dale Ho)


“Florida Republicans quietly stir up more election mischief”

Steve Bosquet column:

They can’t help themselves.

Republicans in Tallahassee have an insatiable desire to tamper with Florida election laws — especially when President Trump is desperate to win the nation’s largest swing state again. An elections bill moving through the Senate has received almost no attention, which is the way lawmakers like it.

Senate Bill 1372 makes some housekeeping changes that election supervisors want. But then it goes beyond what they requested by allowing political parties to assign poll watchers to monitor voting at the polls, no matter where they live in Florida. Current law restricts poll watchers to the county where they vote.

This is an obvious attempt to make it easier to recruit a lot more poll watchers — many of them lawyers — who can legally challenge any voter’s eligibility to cast a ballot.


“Orange County Sent Incorrect Voter Registration Data To State Of Florida”


The Orange County Supervisor of Elections Office is blaming a widely used elections software company for a false report to the state that nearly a quarter million registered voters had been removed from the county’s voting rolls. 

That incorrect number made it into a monthly data report by the Florida Division of Elections. The report lists 257,698 “active” voters that were removed from the voting rolls across the state in January. Out of that total number, 239,147 of the removed voters were from Orange County alone.

The published data would have meant that Orange County removed more than 150 times the total number of voters as compared to the county with the second-most voters removed. It also would have meant that more “active” voters were removed from voting rolls from a single county and during a single month than the total number of voters removed from across the entire state annually going back to 2017, according to state data.

Questioned about the outlier data, the Orange County Supervisor of Elections said the information it sent to the state was incorrect. The office pointed the finger at software from VR Systems, a third-party company that started handling the county’s voter registration system in mid-December


“FBI Arrests Hacker Linked to Former Rep. Katie Hill’s Campaign”

The Intercept:

Federal agents have arrested Arthur Dam in connection with a hacking spree that disrupted the 2018 Democratic California primary that ultimately nominated Katie Hill, according to a new criminal complaint.

Dam, in the criminal complaint, is linked directly to the Hill campaign. Hill won the general election in California’s 25th District and then later resigned from Congress amid controversy.

“Dam was found to be connected to the cyber attacks through subscriber information, IP addresses, geolocation history, and open sources, including through his employer and his wife, K.O., who worked for one of the Victim’s opponents,” the complaint reads.

Dam’s wife is Kelsey O’Hara, Hill’s fundraiser during the campaign and her district director after she won office. O’Hara was also the subject of a sexual remark made by Hill and caught on tape by Vice News in 2018. In Hill’s Federal Election Commission records, she lists a $500 in-kind contribution from Dam on March 25, 2018, for “graphic design and website security consultation.”…

During the campaign, the websites of Hill’s opponents, Democrats Jess Phoenix and Bryan Caforio, who was supported by Justice Democrats, were both attacked, though Hill’s never was, raising suspicions at the time that Hill’s campaign was behind them. One major attack on Caforio’s campaign website came at a crucial moment, just an hour before the biggest debate of the primary, the complaint notes. Hill eventually won the California primary by fewer than 3,000 votes.

The FBI launched a probe that zeroed in on the Hill campaign in 2019, according to FBI correspondence reviewed by The Intercept. Hill did not immediately respond for comment.


“Bernie Sanders briefed by U.S. officials that Russia is trying to help his presidential campaign”


U.S. officials have told Sen. Bernie Sanders that Russia is attempting to help his presidential campaign as part of an effort to interfere with the Democratic contest, according to people familiar with the matter.

President Trump and lawmakers on Capitol Hill also have been informed about the Russian assistance to the Vermont senator, those people said, speaking on the condition of anonymity to discuss sensitive intelligence.

It is not clear what form that Russian assistance has taken. U.S. prosecutors found a Russian effort in 2016 to use social media to boost Sanders’s campaign against Hillary Clinton, part of a broader effort to hurt Clinton, sow dissension in the American electorate and ultimately help elect Donald Trump.

“I don’t care, frankly, who [Russian President Vladimir] Putin wants to be president,” Sanders said in a statement. “My message to Putin is clear: Stay out of American elections, and as president I will make sure that you do.


“Election Officials Are Already Raising Flags About Nevada’s Results”

Steven Rosenfeld reports.

Despite Mahler’s enthusiasm, there were signs that delays or problems counting early votes could shadow 2020’s third Democratic presidential nominating contest. These complications would unfold behind closed doors at vote-counting hubs run by the Nevada State Democratic Party (NSDP). The possible problems concern the system used to scan and count tens of thousands of paper early ballots, as well as the database tracking all of the voters and their votes.

Nearly 75,000 people voted early, the NSDP said. That process continues on Saturday, February 22, with precinct caucuses across the state.

Top party officials have not responded to numerous requests to comment about the last-minute voter-tracking and vote-counting system that it will be using after it jettisoned the same reporting and counting technology that failed in Iowa’s Democratic Party presidential caucuses on February 3.


“Trump Ads Will Take Over YouTube’s Homepage on Election Day”


In the immediate run up to the U.S. presidential election and on Election Day, the homepage of YouTube is set to advertise just one candidate: Donald Trump.

The president’s re-election campaign purchased the coveted advertising space atop the country’s most-visited video website for early November, said two people with knowledge of the transaction. The deal ensures Trump will be featured prominently in the key days when voters across the country prepare to head to the polls Nov. 3.

While the bulk of digital ad spending typically focuses on targeting specific messages to certain audiences, the top spot on YouTube is more akin to a Super Bowl TV ad. About three-quarters of U.S. adults say they use YouTube, exceeding the reach of even Facebook, according to the Pew Research Center.


“Bloomberg’s manipulated debate video earns Four Pinocchios”


In anticipation of the presidential election season, The Fact Checker last year worked with The Washington Post video department to produce a guide to manipulated video. The goal was to produce a common language to identify and label video that is designed to mislead viewers.

Well, in the wake of a widely panned debate performance, Bloomberg’s campaign produced a doozy.


“Political ads are flooding Hulu, Roku and other streaming services, revealing loopholes in federal election laws”


The ad that interrupted some Hulu subscribers as they watched the NBC comedy “Brooklyn Nine-Nine” this month opened with a clip of President Trump speaking.

“The ‘deep state’ is trying to inject our health system with socialist price controls,” a narrator then interjected, before a banner flashed at the bottom of the screen: “TEXT ‘SOCIALISM SUCKS’ TO 41490.”

But neither FreedomWorks, the conservative group behind the ad, nor Hulu, a television-and-movie streaming giant, is required to reveal much more to the public about the 30-second spot or whom it targeted, leaving watchdogs and regulators fearful that federal election laws aren’t fit for the digital age — and that voters remain vulnerable to manipulation.

Four years after Russian agents exploited popular online platforms to push propaganda, sow unrest and promote the Trump candidacy, the U.S. government has made virtually no progress on bringing more transparency to paid political speech. The risks remain high that voters could be duped and deceived by foreign governments, U.S. candidates and advocacy groups — particularly online, where major regulatory gaps exist.


“Russia Backs Trump’s Re-election, and He Fears Democrats Will Exploit Its Support”


Intelligence officials warned House lawmakers last week that Russia was interfering in the 2020 campaign to try to get President Trump re-elected, five people familiar with the matter said, in a disclosure that angered Mr. Trump, who complained that Democrats would use it against him.

The day after the Feb. 13 briefing to lawmakers, Mr. Trump berated Joseph Maguire, the outgoing acting director of national intelligence, for allowing it to take place, people familiar with the exchange said. Mr. Trump cited the presence in the briefing of Representative Adam B. Schiff, the California Democrat who led the impeachment proceedings against him, as a particular irritant.

During the briefing to the House Intelligence Committee, Mr. Trump’s allies challenged the conclusions, arguing that Mr. Trump has been tough on Russia and strengthened European security. Some intelligence officials viewed the briefing as a tactical error, saying that had official who delivered the conclusion spoken less pointedly or left it out, they would have avoided angering the Republicans.


“After a congressional briefing on election threats, Trump soured on acting spy chief”


Maguire had been considered a leading candidate to be nominated for the DNI post, White House aides had said. But Trump’s opinion shifted last week, after he heard from a GOP ally that the intelligence official in charge of election security, who works for Maguire, gave a classified briefing last Thursday to the House Intelligence Committee on 2020 election security.

It’s unclear what the official, Shelby Pierson, specifically said at the briefing that angered Trump, But the president erroneously believed that she had given information exclusively to Rep. Adam Schiff (D-Calif.), the committee chairman, and it would be helpful to Democrats if released publicly, the people familiar with the matter said. Schiff was the lead impeachment manager, or prosecutor, during Trump’s Senate trial over abuse of power and obstruction of Congress.


“Reconstructing Racially Polarized Voting”

Travis Crum has posted this draft on SSRN (forthcoming, Duke Law Journal). Here is the abstract:

Racially polarized voting makes minorities more vulnerable to discriminatory changes in election laws and therefore implicates nearly every voting rights doctrine. In Thornburg v. Gingles, the Supreme Court held that racially polarized voting is a necessary—but not a sufficient—condition for a vote-dilution claim under Section 2 of the Voting Rights Act. The Court, however, has recently questioned the propriety of recognizing the existence of racially polarized voting. This colorblind approach threatens not only the Gingles factors but also Section 2’s constitutionality.

The Court treats racially polarized voting as a modern phenomenon. But the relevant starting point is the 1860s, not the 1960s. Prior to the Fifteenth Amendment’s passage, Republicans had already received overwhelming support from newly enfranchised black voters in the former Confederate States and expected that support to continue. The Reconstruction Framers were thus attentive to the realities of racially polarized voting and openly recognized that extending the franchise would empower blacks to mobilize politically and protect their own interests. Racially polarized voting was a feature—not a bug—in the passage and ratification of the Fifteenth Amendment. Accordingly, this Article argues that the Court’s treatment of racially polarized voting as a constitutional taboo is historically unfounded and doctrinally incoherent.

There are significant implications for acknowledging the role of racially polarized voting during Reconstruction. This historical insight moves vote-dilution claims—and their predicate finding of racially polarized voting—far closer to the heart of the Reconstruction Amendments and undermines the Court’s hostility to race-based redistricting. It is powerful evidence that Congress is well within its enforcement authority to remedy and deter dilutive measures that exploit racially polarized voting. Finally, reconstructing racially polarized voting helps re-orient voting rights doctrine toward a Fifteenth Amendment framework.


“Trump, RNC announce $10 million plan to battle Dems on voting lawsuits”


President Donald Trump’s reelection campaign and the Republican National Committee are pumping more than $10 million into a legal campaign challenging Democratic voting-related lawsuits and building a massive Election Day operation.

The multi-million-dollar effort pits the two parties against each other on the issue of voting rights, with Democrats contending that they’re trying to make it easier for more people to cast ballots — and Republicans arguing that they must guard against potential fraud.


Bad News from Michigan: “GOP leader nixes bill to process influx of absentee ballots”


 A top Republican lawmaker on Wednesday came out in opposition to legislation that would ease Michigan election clerks’ ability to process an expected influx of absentee ballots, saying it would set a “dangerous precedent.”

Local officials want legislators to let them start opening return envelopes for absentee ballots the day before Election Day. The actual ballots would still stay inside secrecy envelopes until counting on Election Day.

As of last week, the number of absentee ballot applications was up by more than 60% for the March 10 presidential primary compared to 2016 following voters’ passage of a 2018 ballot initiative that allows people to vote absentee for any reason, according to Democratic Secretary of State Jocelyn Benson’s office. While the bill was not expected to be approved in time for that contest, Senate Majority Leader Mike Shirkey’s stance makes it unlikely that the proposed change will be enacted before the November presidential election.

Shirkey said he understands clerks’ concerns, but he wants to see how the current process works.

Adam Ambrogi:


“Caucus chaos again? Experts fear vote-counting problems in Nevada”

NBC News:

A new early-voting system, high turnout and questions about a never-before-used digital tool being used to process results could threaten the success of the Nevada Democratic caucuses on Saturday, election experts told NBC News.

“I don’t see how any technologist or any party official or any political scientist can promise that this will turn out OK,” said Mark Lindeman, the director of science and technology policy for Verified Voting, a nonpartisan nonprofit group that advocates for election accuracy and transparency.

“There are too many tools and procedures that are being rolled out, some at the last minute,” he continued. “And my impression is that the people on the ground who are charged with implementing these procedures and using these tools are not confident they can do it.”…

The Nevada Democratic Party said it will be using a digital tool they are calling a “caucus calculator” to help process the results. According to state party officials, the tool is a Google Forms program that has been pre-loaded with early vote results specific to that precinct. It’s also pre-loaded with formulas that will be used to calculate delegate allocation.

Caucus volunteers — who staff the precincts and run the caucuses — began receiving hands-on training with iPads that contain the tool on Tuesday. The training will continue until Saturday, according to the Nevada Democratic Party.

Party officials have repeatedly said that nothing used during the Iowa caucuses — including the smartphone app that caused a significant delay in reporting results due to a “coding issue” — will be used during the Nevada caucuses. Officials also said they had independent security experts test the process, but could not say what the testing looked like.

If the iPads fail for any reason, the volunteers will use paper backups.

“I think we have reason to be worried,” said Rick Hasen, a professor of law and political science at the University of California-Irvine and the editor of Election Law Blog. “As was the case in Iowa, you have the party doing multiple new things at once. Here, one is new technology, and two is new rules, with the early voting.”

“It makes me queasy,” he added, calling the system “incredibly complex.”


“What happens during a contested Democratic National Convention?”

Joshua Spivak:

Iowa and New Hampshire have voted, but the Democratic field has not appreciably thinned. With no candidate even gaining 30 percent in the first two states, political forecasters have noted that the odds are greatly increasing that no one will have a majority heading into the Democratic convention in Milwaukee this summer. While discussion of a brokered convention comes up every four years, the parties have done little to plan for what one would actually look like. Thanks to changes in the process, a contested fight could be vastly more complicated than in the past.


Political Brands by Prof. Torres-Spelliscy (Post 4 of 4)

The following is the last of four guest posts by Prof. Ciara Torres-Spelliscy, writing about her new book, Political Brands.

Professor Hasen offered me the opportunity to excerpt my new book Political Brands on ELB. My publisher Edward Elgar Publishing gave me permission to excerpt the books introductory chapter “Branding Itself.” These excerpts have been edited for continuity.

The results of the 2016 presidential election motivated me to write Political Brands. How, I wondered, could America have elected a brand as president?  The other occurrence that motivated me to write this book is a sense that Americans are suffering from “truth decay.”  To me, electing a brand president and the decay of truth are intertwined, because the more that voters rely on flashy branding to dictate who is electable, the more they are likely to fall for a slick, media-savvy candidate over a competent and truthful one.

I am a campaign finance lawyer by training. And one of the drivers of the high price of political campaigns is the exorbitant cost of advertising. What first got me interested in branding was a statement from Senator Russ Feingold, who warned in 2011 that “We’re going to have Republican and Democrat toothpaste.”  His quote inspired me to look at commercial branding, political advertising and how these two spheres intersect.  And that was all before Trump was elected president.

The criminal and congressional investigations into Trump’s election in 2016 have provided a treasure trove of information for a researcher like me. In a typical election, political ads that were placed on Facebook for a millisecond could be lost to history. But now some of those ads, because they are suspected to be part of a foreign attack on the integrity of our elections, are part of a permanent and public Congressional record. Like the Congressional investigation into Watergate, which gave the public a rare peek behind the curtain into the 1972 election, the investigations into the 2016 election provide a chance for a deeper dive on how modern elections are transforming.

A final reason that I wanted to write this book is to show the artifice of political branding. Typically, the people using political branding techniques are just trying to manipulate the public. When President Trump calls his Mar-a-Lago golf club in Florida the “Winter White House,” that is branding and not original branding either. President Nixon (1969-74) called his Florida home the “Winter White House.”   When Special Counsel Robert S. Mueller III’s investigation into the 2016 election is called a “witch hunt” by Presidential Advisor Kellyanne Conway, that is branding.  Again, it’s not original branding. This phrase harkens back to the dark days of the Salem witch trials—the original American “witch hunt.”  When White House Chief Strategist Steve Bannon said, “drain the swamp,” about limiting the power of Washington insiders, that was branding. Again, it wasn’t original.  Senator Richard Neuberger used the phrase “drain the swamp” in a piece in the New York Times urging the adoption of public financing for federal elections back in 1956.   The original Mother Jones (the woman whom the magazine is named after) also said “drain the swamp” in 1913.  Even Speaker of the House Nancy Pelosi in 2006 called for Democrats to “drain the swamp.” 

But when working for a firm called Cambridge Analytica, Steve Bannon tested the phrase “drain the swamp” years before it was used in the 2016 election campaign by candidate Donald Trump.  Clearly, what Mr. Bannon was doing was brand testing, and “drain the swamp” hit the right chord for his target market.  My hope is that perhaps when Americans see that “Winter White House,” “witch hunt” and “drain the swamp” are all just basic branding trying to sell something, they can be less gullible about falling for messages designed to tug at our emotions and obfuscate the truth. 

“Branding” has been called “a process of manufacturing meaning.”  I don’t disagree, but that is precisely why branding’s power needs to be interrogated. Manufacturing meaning is a scary power in the wrong hands. During the Third Reich in Germany, propagandist Joseph Goebbels “manufactured meaning” too. It led to genocide and a World War.


11th Circuit Unanimously Affirms District Court Preliminary Injunction Blocking Enforcement of Florida Legislature Law Requiring Ex-Felons to Pay Fees and Fines Before Reenfranchisement

You can find the 78-page opinion at this link. It begins:

On November 6, 2018, Florida voters approved Amendment 4, a state constitutional amendment that automatically restored voting rights to ex-felon who had completed all of the terms of their sentences.

Contemporary media reports suggested that as many as 1.4 million felons could be eligible for reenfranchisement under the law. Accounts differed as to whether this figure made Amendment 4 the single largest act of enfranchisement since the Nineteenth Amendment in 1920, the Voting Rights Act in 1965, or the Twenty-Sixth Amendment in 1971. By any measure, Amendment 4’s enfranchisement was historic.

Amendment 4 provided that a felon’s “voting rights shall be restored upon completion of all terms of sentence including parole or probation.” Following its passage, the Florida legislature passed Senate Bill 7066, which implemented the Amendment and interpreted its language to require payment of all fines, fees and restitution imposed as part of the sentence (collectively, “legal financial obligations” or “LFOs”). The Florida Supreme Court later agreed with the legislature’s interpretation of the Amendment—during the pendency of this appeal, it held that the plain text of Amendment 4 requires payment of all LFOs as a precondition of re-enfranchisement.

Following the passage of SB 7066, the seventeen plaintiffs in this case brought suit, challenging the constitutionality of the LFO requirement. Each plaintiff is a felon who has alleged that he or she would be eligible for reenfranchisement under Amendment 4 but for non-payment of outstanding LFOs. Each plaintiff has also alleged that he or she is indigent and, therefore, genuinely unable to pay those obligations.

The cases were consolidated in the United States District Court for the
Northern District of Florida, which then issued a preliminary injunction requiring the State to allow the named plaintiffs to register and vote if they are able to show that they are genuinely unable to pay their LFOs and would otherwise be eligible to vote under Amendment 4. From this order the State timely appealed to this Court.

Because the LFO requirement punishes those who cannot pay more harshly than those who can—and does so by continuing to deny them access to the ballot box—Supreme Court precedent leads us to apply heightened scrutiny in asking whether the requirement violates the Equal Protection Clause of the Fourteenth Amendment as applied to these plaintiffs. When measured against this standard, we hold that it does and affirm the preliminary injunction entered by the district court.


“Expect absentee ballot surge to delay Michigan election results”

Detroit News:

Michigan residents should be prepared for delayed results in next month’s presidential primaries — but the wait will be shorter than what’s anticipated in November’s general election, when results in some big cities aren’t expected until the following day, experts say. 

An increase in absentee voters and the time it takes to count their votes on Election Day likely will delay official results, even though pending legislation seeks to shorten the process. 


Political Brands by Prof. Torres-Spelliscy (Post 3 of 4)

The following is the third of four guest posts by Prof. Ciara Torres-Spelliscy, writing about her new book, Political Brands.

Professor Hasen offered me the opportunity to excerpt my new book Political Brands on ELB. My publisher Edward Elgar Publishing gave me permission to excerpt the books introductory chapter “Branding Itself.” These excerpts have been edited for continuity.

The largest publicly traded companies are sometimes richer than nations.  They are big, global and imposing, but they have two Achilles’ heels related to their brands: rejection by their investors and shunning by their customers.  If the brand is damaged, the company is likely to suffer.  Corporations typically want to add to the value of their brands, not detract from it.  The goodwill associated with a brand may well be a company’s greatest asset. 

Indeed, intellectual property litigation is often launched by firms to ensure that no one is using a copyrighted brand logo, trade dress or trademark in a way that would tarnish or harm a brand.  As Justice Frankfurter once held: “The protection of trade-marks is the law’s recognition of the psychological function of symbols.”  And the value of these symbols can reach the billions. Forbes estimated the value of Nike’s swoosh at $26 billion;  though that pales in comparison to Apple’s “apple with a missing bite” brand, which Forbes valued at $170 billion.

Typically, building up positive connotations for a brand is done through advertising using standard puffery.   Old standbys for advertisers are the assertion (true or not) that if the customer buys this product, she will be more powerful, rich, intelligent, sexy, envied or successful.   But the lies to sell products can get out of hand, as Vance Packard complained in his book The Waste Makers: “Millions of consumers are manipulated, razzle-dazzled, indoctrinated, mood-conditioned, and flimflammed.” 

Jingles to sell products are often “earworms” that get stuck in viewers’ heads. They can be so insidious that even if viewers hate the product or the company behind it, the ad copy is stuck in their minds. As Drew Westen notes, “[w]hen even people who don’t like your product are humming your jingle, you know you’ve got them where it counts: in their [neural] networks.”  Likewise, ad man Nigel Hollis once wrote:

engaging and memorable ads slip ideas past our defenses and seed memories that influence our behavior. You may not think advertising influences you. But marketers do. And in addition to millions of dollars, they have something else most people don’t have: Access to data that proves their point.

As the data crunchers over at Nielsen have found, “[p]ractice (repetition) indeed makes perfect—and can help create durable memories.”   One of the oddities of advertising brands is that some customers associate repetitive ads with higher-quality products. Objectively, this is somewhat absurd, since a heavily advertised item could be poorly constructed, carcinogenic or addictive. But nonetheless, this is a measurable phenomenon:

Repetition of an ad may signal to consumers that the brand or product is a good buy, or a quality product. This is sometimes referred to as signaling theory. In 1975, University of Wyoming researchers Anthony McGann and Raymond Marquardt found that ads with high rates of repetition tended to also be rated as high quality in Consumer Reports

And even more disturbingly, the more an ad is repeated, the more viewers will believe it (even if the claim that is being repeated is not true). “Studies suggest that repeated statements are perceived as more truthful than statements made less frequently, ‘presumably because repetition imbues the statement with familiarity.’ In simple terms: frequency breeds familiarity, and familiarity breed trust.”

These commercial branding techniques can be used in political ads as well.


Final Slate “Election Meltdown” Podcast Recording Live in Washington DC Wednesday

If you are in Washington DC, come on out and join us (tickets required):


“Watchdog Says Buttigieg Campaign Exploited Super PAC Loophole”


To most supporters of Pete Buttigieg, the tweet probably seemed innocuous: A senior adviser to Mr. Buttigieg, Michael Halle, simply noted that the candidate’s military record would be an asset in Nevada.

But critics say Mr. Halle’s tweet also served as a Bat Signal to VoteVets, the super PAC supporting Mr. Buttigieg’s candidacy, with an unmistakable directive: Run ads in Nevada on this issue….

But a campaign finance watchdog group filed a complaint on Tuesday, alleging that Mr. Halle’s tweet ran afoul of federal regulations. Though the F.E.C. allows super PACs to use “publicly available” information to create ads, the complaint said the agency did not allow ads to be created and distributed at the “request or suggestion” of a candidate or his agent.

“It was the Buttigieg campaign’s obvious and detailed request for super PAC support here that crossed the legal line,” said Brendan Fischer, the director of the federal reform program at the Campaign Legal Center, the watchdog group that filed the complaint.


Election Meltdown Dep’t: Electronic Voting Glitch Halts Elections in Dominican Republic


Dominican Republic’s nationwide municipal elections were suspended only four hours after voting began on Sunday due to a glitch in the electronic voting system, officials said.

More than 7.4 million voters were due to vote to elect 3,849 positions in 158 municipalities across the Caribbean nation. The failure of the system is likely to raise concerns ahead of the May 17 presidential elections.

Julio Cesar Castanos, president of Dominican Republic’s electoral body, said nearly half of the electronic devices did not work properly and many virtual ballot papers did not load, leaving citizens unable to cast their votes.


“NC Court of Appeals throws out voter photo ID for now, says law likely passed with discriminatory intent”

NC Policy Watch:

A three-judge North Carolina Court of Appeals panel has ruled unanimously that the state’s voter photo ID law will not stand pending a trial on the merits of the underlying lawsuit.

The 45-page ruling, written by Judge Toby Hampson with Judges John Arrowood and Allegra Collins concurring, states that the plaintiffs demonstrated they would likely succeed on their claims that the law, Senate Bill 824, is discriminatory and will cause irreparable harm. It also states that since the federal courts have already prevented the law from going into effect for the upcoming primary election, the decision to continue an injunction would prevent further voter confusion.


“The new thing for California politicians? Sweet charity”

Lauren Rosenhall for CalMatters:

In California, their numbers, as well as their donations, are surging. According to a CalMatters analysis, the number of nonprofits affiliated with California legislators or caucuses grew from at least three in 2010 to at least 12 last year, with total revenue of about $2.9 million. 

Much of the money has come from corporations and unions with business before the Legislature, including oil, tobacco and other lobbies whose political contributions are officially or unofficially shunned by the member’s party. The upshot, experts say, is a monetary backchannel that, while legal and even sometimes beneficial, has also become an increasingly common way for politicians to raise and spend money outside the limits even of California’s tough regulations. 


“Kansas elections chief’s security plan causes local unease”


Kansas’ elections chief is pushing to make the state’s central voter registration database more secure by changing how counties tap into it, but some officials are nervous about what they see as a big project in a busy election year.

Secretary of State Scott Schwab has told county election officials that he wants them to use dedicated tablets, laptops or computers not linked to their counties’ networks to access the state’s voter registration database. He says Kansas is getting $8 million in federal election security funds that could be used to cover the costs.